Escolar Documentos
Profissional Documentos
Cultura Documentos
V.
.RESPONDENTS
APPLICATION NO.___/2016
ENVIRONMENTAL CLEARANCE
UNDER
WAKE OF CONSTRUCTING
SUSTAINABLE DEVELOPMENT
AND
IN THE
DEFENCE-RELATED
RESEARCH INSTITUTE............................................................................................................17
5.1 Violation of Sustainable Development vis--vis Environment Protection Act,
1986..................................................................................................................................17
5.2 Disturbance of Biodiversity by non-adherence to Sustainable development............18
PRAYER............................................................................................................................... ..XXII
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MEMORANDUM ON BEHALF OF THE APPLICANTS
INDEX OF AUTHORITIES
TABLE OF CASES
Adivasi Majdoor Kisan Ekta Sangathan v MoEF 2012 SCC Online NGT 51 ........................ 12
Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Others, AIR 1997 SC
152.......................................................................................................................................... 9
Andhra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812 .......................... 8
Association of Environment Protection v State of Kerala, (2013) 7 SCC 266 ........................ 14
B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93 ............................................................ 8
Chameli Singh and Ors. v. State of Uttar Pradesh, AIR 1996 SC 1051 .................................... 9
Commissioner of Police and Ors. v. Acharya Jagdishwarananda Avadhuta and Anr., (2004)
12 SCC 770 .......................................................................................................................... 10
Court on its own motion v. Union of India & Ors., 2014 SCC Online Jhar 392 ..................... 19
Court on its own motion v. Union of India, (2013) 3 SCC 247............................................... 10
Dalmia Cement Bharat Ltd. v. Union of India, (1996) 10 SCC 104 ......................................... 8
Davis George Thomas vs Ministry of Environment & Forest, Climate Change, 2015 SCC
Online CIC 12990 ................................................................................................................ 17
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 SCC (L&S) 1213 ............... 7
Dr. N.B. Khare v. State of Delhi, AIR 1950 SC 211 ................................................................. 6
Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC .................................... 7
Francis Coralie Mullin v. Union territory of Delhi, AIR 1981 SC 746 ..................................... 8
G Sundarrajan v Union of India, (2013) 6 SCC 620.......................................................... 14, 18
Indian Council for Enviro Legal Action v. Union of India, (1996) 5 SCC 281 ................ 14, 16
K.K. Royson v. Union of India, 2014 SCC Online NGT 61 ..................................................... 1
Kalpavriksh Vagholkar v. Union of India, (2014) ALL (I) NGT Reporter (2) (Delhi) 282 ...... 1
Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52 ................................................... 2
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 .................................................... 6
Krishi Vigyan Arogya Sansthan v MoEF, 2011 SCC Online NGT 18 ................................... 13
M.C. Mehta v, Union of India, 2002 (4) SCC 353 .................................................................. 18
M.C. Mehta v. Union of India, AIR 1988 SC 1115 ................................................................... 9
M.R.F. Ltd. v. Inspector Kerala Government and Ors., (1998) 8 SCC 227 .............................. 7
M.S. Thannkappan v Union of India, 2014 SCC Online NGT 1723 ....................................... 14
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MEMORANDUM ON BEHALF OF THE APPLICANTS
STATEMENT OF JURISDICTION
The Applicants have approached this Honble Tribunal under section 14 of the National
Green Tribunal Act, 2010.
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MEMORANDUM ON BEHALF OF THE APPLICANTS
STATEMENT OF FACTS
1. The Republic of Dorado is a developing nation with 15,00,000 hectares of semi-arid
grasslands named Gilead. The native Tribes Tarda used to inhabit and depended on
these lands for sustenance as well as worshipped them as their God. The grasslands
were converted to Industrial areas and townships and the area of such grasslands came
down to merely 1,50,000 hectares out of which the grassland in District of Khyber
named Varkia constituted 35,000 hectares.
2. The Government of Dorado announced to set up a Uranium enrichment facility and
Defence-related research institute for development of aircrafts and missiles in 2013.
The Government began to construct the same in May 2014 and built huge walls
enclosing Varkia which resulted in hindrance in the movement of animals as well as
natives.
3. An action council Radava Mehel protested continuously and the government stated
that projects such as Uranium enrichment and spent fuel storage facility, missile
research, development and testing range were to be built up in that area. However, no
information regarding construction was divulged.
4. An NGO, Environmental Action Network, joined the Radava Mehel because neither
consultation nor public hearing took place before the inception of Governments
project. 15 Blackbucks and 1 Great Bustard were found dead in February 2015.
Pursuant to this, the village panchayats of 12 villages passed a resolution against
conversion of grasslands.
5. In May 2015, a newspaper report stated that the environmental clearance was not
obtained by the Government for the aforesaid projects. In response, the Government
claimed that necessary clearance had been obtained under Environment Impact
Notification, 2006 from the State Environmental Impact Assessment Authority
(SEIAA) in January, 2015.
6. Aggrieved by the establishment of such facilities by the Government, Mr. Tharik
Ghulam and Environmental Action Network filed applications in the National Green
Tribunal. Hence, the present applications.
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MEMORANDUM ON BEHALF OF THE APPLICANTS
STATEMENT OF ISSUES
1. WHETHER THE APPLICATIONS FILED BEFORE THIS TRIBUNAL ARE MAINTAINABLE?
2. WHETHER
THE GRASSLANDS
GILEAD
IS DEEMED TO BE
FOREST
UNDER
FOREST
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MEMORANDUM ON BEHALF OF THE APPLICANTS
SUSTAINABLE
SUMMARY OF ARGUMENTS
1. That the Applications filed before this Honble Tribunal are maintainable.
a. The principle of locus standi has been relaxed by the tribunal to include every
person directly or indirectly affected.
b. Not only person actually aggrieved but any person can raise a concern pertaining
to environment insofar as the environment is at stake.
c. Limitation period begins when the cause of action first arises.
d. The cause of action pertains to an environmental dispute arising out of a
substantial question of environment.
2. That the grasslands Gilead are deemed to be forest under Forest Conservation
Act, 1980.
a. The definition of Forest has been extended by the Honble Supreme Court to
preserve ecology and protect the lives of people residing in there.
b. Grasslands natural vegetative growth includes Gilead in definition of Forest as
per the dictionary meaning.
3. That the Tardas rights have been violated by the Government of the Republic of
Dorado.
a. Construction carried out by the Government of the Republic of Dorado stands in
violation of the Scheduled Tribes and Other Forest Dwellers (Recognition of
Forest Rights) Act, 2006.
b. Construction undertaken by the Government violates Article 19 of the
Constitution.
c. Construction undertaken by the Government violates Article 21 of the
Constitution.
d. Construction undertaken by the Government violates Article 25 and 26 of the
Constitution.
4. That the government did not obtain the required Environment clearance under
Environment Protection Act, 1986.
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MEMORANDUM ON BEHALF OF THE APPLICANTS
ARGUMENTS ADVANCED
1. THE APPLICATIONS FILED BEFORE THIS HONBLE TRIBUNAL ARE MAINTAINABLE
1. The Applications filed before this Tribunal are maintainable because [1.1] the
applicants have locus standi to file the application and [1.2] the applications are not
barred by the limitation.
1.1 The Applicants have locus standi to file the instant application
2. The applicants, in the instant matter, do have the locus standi to file this applications
because jurisdiction of this tribunal extends to (a) all the civil matters, (b) which
pertain not only to a substantial question of environment or enforcement of any legal
right pertaining to environment (c) but also which arise from implementation of the
acts mentioned in the Schedule I of the Act.1 The fact that the National Green Tribunal
Act empowers only the persons aggrieved to file an application2 does not bar the
applicant from filing the application since this Honble Tribunal had itself widened the
concept of locus standi in the environment matters.3
3. The Constitution of India confers a fundamental duty upon every citizen of India for
protection and improvement of environment4 and thus person aggrieved under the
National Green Tribunal Act, 2010 was held to be at par with every citizen under the
Constitution.5 This Tribunal, therefore, has stated that matters which pertain to ecology
and environment affect every person either directly or indirectly and therefore, the
right to file an application cannot be limited to the individual who is actually
aggrieved.6 Since, Mr. Tharik Ghulam is a resident of District of Khyber, he is directly
affected and therefore, squarely falls within the persons aggrieved under section 18.
Therefore, as per this Tribunals directions, the NGO Environmental Action Network
does have the locus standi to file the instant application.
1.2 The Applications filed are not barred by limitation
Kalpavriksh Vagholkar v. Union of India, (2014) ALL (I) NGT Reporter (2) (Delhi) 282.
National Green Tribunal Act, 2010 14.
3
Samata and Ors. v. Union of India, 2013 SCC Online NGT 101; Goa Foundation v. Union of India, 2013
All India (NGT) Reporter (New Delhi) 234.
4
INDIA CONST. art. 51A(g).
5
Vimal Bhai and Ors. v. Ministry of Environment and Forests and Anr., 2011 SCC Online NGT 16.
6
K.K. Royson v. Union of India, 2014 SCC Online NGT 61.
2
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MEMORANDUM ON BEHALF OF THE APPLICANTS
6. It is humbly submitted that the Gilead grasslands must be deemed to be forest under
Forest Conservation Act, 1980 [mentioned as FC Act hereinafter] because [2.1] the
definition of forest has been extended by the Honble Supreme Court, and [2.2] it
was extended to preserve the ecology and to protect the adverse impact on human
lives.
2.1 Extension of definition of forest by the Supreme Court
7. The Forests are considered to be National wealth and the State is obliged to preserve
the forests under Article 48-A of the Constitution so that ecology can be balanced.12
The FC Act, 1980 stipulates that every authority is bound to take prior approval of the
Central Government to make an order which diverts the forest land for non-forest
purposes.13
8. The Honble Supreme Court held that real intent behind the enactment of FC Act was
to reduce deforestation and to improve ecological balance.14 The Forest was held to
be understood as per its dictionary meaning apart from statutorily recognised forests or
otherwise.15 The meaning of a forest was extended for the purpose of preserving all
the forest lands from deforestation and balancing of ecology by preventing
environmental degradation and minimising adverse impact on the right to life of
public.16 Furthermore, forest preservation and protection was held to be intrinsically
connected with the lives of tribal people.17
2.2 Purpose of extension of the definition was to protect the ecology and life
9. The Task Force on Grasslands and Deserts constituted by the Planning Commission
stated that not considering grasslands as forest under the FC Act would be in
contravention of the order of 12.12.1996 passed by T.N. Godavarman.18 It was further
stated that grasslands having natural vegetative growth should also be considered as a
12
3
MEMORANDUM ON BEHALF OF THE APPLICANTS
19
20
Ibid.
Forest Conservation Act, 1980, 2, Explanation (b).
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MEMORANDUM ON BEHALF OF THE APPLICANTS
21
NATIONAL FOREST POLICY, 1988, No. 3A/86-FP, Ministry of Environment and Forests.
MINISTRY OF ENVIRONMENT AND FOREST, HANDBOOK OF FOREST (CONSERVATION) ACT, 1980 (2004).
23
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476.
24
The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, 3(1)(l).
25
Supra note 23.
26
The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, 3(1)(a).
22
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MEMORANDUM ON BEHALF OF THE APPLICANTS
15. Right of free movement and Right of residence are protected under the Constitution.28
These rights have been read together both of these rights get affected when a citizen is
evicted.29 Although these rights are not absolute and come with certain reasonable
restrictions, the scope of the right of movement is much wider as the word freely has
been used, which makes it almost absolute.30 In the instances of land acquisition, the
Courts have recognised the interference of state action in right to residence of citizens
and obliged the state to take further compensatory action failure of which would result
in violation of fundamental right.31
16. The restriction to be imposed on a citizens right to move freely or of residence needs
to be backed by law under Article 19(5) of the Constitution and the circumstances or
manner in which restrictions are put also constitute an important component of
reasonableness.32
17. In the instant matter, government of the Republic of Dorado interfered with the rights
of tribal people by hindering their movement into their native lands and this action was
not backed by any law since the Tardas were unofficially informed to evict the place.33
It is humbly submitted that the government of Republic of Dorado has violated Article
19(1)(d) and 19(1)(e) of the Constitution.
27
The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, 3(2).
INDIA CONST. art. 19(1)(d) & (e).
29
M.P. JAIN, CONSTITUTIONAL LAW OF INDIA 1471 (7th ed. 2014).
30
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
31
Anirudh Barman, Movement and Residence, in THE OXFORD HANDBOOK OF INDIAN CONSTITUTION 819
(Sujit Choudhary et al ed., 2016); Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
32
Dr. N.B. Khare v. State of Delhi, AIR 1950 SC 211.
33
6, Moot Proposition.
28
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34
7
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41
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MEMORANDUM ON BEHALF OF THE APPLICANTS
28. Right to Shelter has been read as a concomitant to the right to life under article 2152
and it meant to include adequate space and decent surroundings rather than merely a
roof over ones head.53 The Constitution imposes a positive obligation on the state to
provide shelter to make the right to life of an individual meaningful.54
29. In the instant matter, the government informed the Tribal Communities to leave the
grasslands and evicted them from their habitat rather than providing for an adequate
place to settle.55 Therefore, it is submitted that there has been a violation of the right to
shelter of Tardas under the Constitution.
3.4 The violation of Right to practice and profess religion under Article 25 and 26 of
the Constitution
30. The traditional rights and practices of the tribal communities are protected under the
Constitution.56 The Supreme Court has recognised right to worship a communitys
deity as protected under Article 25 and 26 of the Constitution because not only faith
49
9
MEMORANDUM ON BEHALF OF THE APPLICANTS
57
10
MEMORANDUM ON BEHALF OF THE APPLICANTS
33. It is humbly submitted that the government of Republic of Dorado have violated
Environment Protection Act, 1986 [mentioned as EP Act hereinafter] as [4.1] the
required environment clearance was not obtained for establishing the Uranium
Enrichment and Spent Fuel Storage Facility, [4.2] the purportedly obtained clearance
the government is void and [4.3] the government has violated the Right to Information
Act 2005 by not disclosing the purportedly obtained clearance or any other documents
relating to the Environment Impact Assessment of the project.
4.1 Violation of the Environment Impact Assessment Notification, 2006 as clearance
had not been obtained
34. Environment Impact Assessment has to be followed to ensure that the probable effects
of a developmental activity on the environment are taken into consideration and
accordingly measures are taken to minimise the harm before such activity is authorised
to be undertaken.62 This regulatory mechanism is based on the Precautionary Principle
and Sustainable Development, which have been envisaged by the National Green
Tribunal Act 2010.63 The Honble Supreme Court has held that a developmental
activity involving a serious and irreversible harm to the environment cannot be
permitted and the clearance was subsequently rejected.64
35. The Development projects are to be undertaken as per the procedure laid down in the
Environment Impact Assessment Notification, 2006.65 The Notification mentions such
activities that pose a great threat to the environment and the procedure that has to be
followed to obtain an Environment Clearance for these activities,66 which has to be
given after the appraisal of the Environment Impact Assessment Report by the
concerned authority.67
4.1.1
62
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MEMORANDUM ON BEHALF OF THE APPLICANTS
Mayur Karsabhai Parmar v. Union of India, 2012 SCC Online NGT 48.
Environment Impact Assessment Notification, 2006, Cl. 7(II).
70
Mayur Karsabhai Parmar v. Union of India, 2012 SCC Online NGT 48.
71
Ministry of Environment and Forests, Order No. J-11013/19/2012-IA.II(I) (2012), March 20, 2012.
72
Shibani Ghosh v. Ministry of Environment and Forests, [2012] CIC 1063.
73
Utkarsh Mandal v. Union of India, 2009 SCC Online Del 3836.
74
7, Moot Proposition; 11, Moot Proposition.
75
6, Moot Proposition.
76
Ministry of Environment and Forests, Order No. J-11013/19/2012-IA.II(I) (2012), March 20, 2012.
77
The Environment (Protection) Act, 1986, 3.
69
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78
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The Government had not received clearances under the Pollution legislations
45. The Water (Prevention and Control of Pollution) Act, 1974 (mentioned as Water Act
hereinafter) lays down that any person who establishes any industry or operation or
process which is likely to discharge sewage or trade effluent into any water source,
must get a prior permission from the State Pollution Control Board.91 Similarly, the Air
(Prevention and Control of Pollution) Act, 1981 (mentioned as Air Act" hereinafter)
necessitates every person to get permission from the State Pollution Control Board
before establishing or operating any industry in an Air Pollution Control area.92
46. These provisions apply not only to the individuals who establish an industry but also to
the government, as the term person has been held to include the government, as
such interpretation makes sure that there is a check on the industries polluting the
86
14
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93
15
MEMORANDUM ON BEHALF OF THE APPLICANTS
101
Ibid.
Ibid.
103
Ibid.
104
2015 SCC Online CIC 12990.
105
Ibid.
102
16
MEMORANDUM ON BEHALF OF THE APPLICANTS
RESEARCH INSTITUTE.
51. It is humbly submitted that the Government of Republic of Dorado has not taken into
consideration the principle of Sustainable Development while constructing facilities
because [5.1] there has been a violation of the principle of sustainable development
and [5.2] Biodiversity of the Gilead has been disturbed by the establishment of the
Government.
5.1 Violation of Sustainable Development vis--vis Environment Protection Act, 1986
52. The principle of Sustainable Development had been considered as an integral part of
the life as envisaged by the Article 21 of the Constitution.106 The Honble Supreme
Court has recognised this principle and stated that Sustainable Development strikes a
balance between environmental protection and development activities under the EP
Act.107 All the developmental activities should be carried out while maintaining a
balance between environment and developmental activities which can only be attained
by sustainable development.108
53. The Honble Supreme Court in G. Sundarrajan v. Union of India,109 held safety to be
paramount in the matters where nuclear plants are being established as the impact of
such establishments will be adverse on the present as well as future generations.110
Therefore, it was held that preserving environment in the present would be protecting
future generations interests as well.111 The Court further held that safety is
encapsulated under Right to life under Article 21 and thus needs to be protected even if
nuclear plants are to be considered in the larger interest of public.112
54. The process of Uranium enrichment results into the generation of radioactive waste
and its resulting harmful effects on the environment and peoples life had led the
106
17
MEMORANDUM ON BEHALF OF THE APPLICANTS
113
Court on its own motion v. Union of India & Ors., 2014 SCC Online Jhar 392.
1 JUSTICE T.S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA 488 (1st ed. 2005).
115
5, Moot Proposition.
116
Adrian Levy, Experts worry that India is creating new fuel for an arsenal of H-Bombs, THE CENTRE FOR
PUBLIC INTEGRITY (December 16, 2015), https://www.publicintegrity.org/2015/12/16/18874/experts-worryindia-creating-new-fuel-arsenal-h-bombs.
117
10, Moot Proposition.
118
A.P. Pollution Control Board v. Prof. M.V. Nayudu and Ors., (1999) 1 SCR 235.
119
E. Somanathan, Biodiversity in India, INDIAN STATISTICAL UNIT
, http://www.isid.ac.in/~som/papers/BiodiversityinIndia_rev.pdf
120
2013 SCC Online NGT 2283.
114
18
MEMORANDUM ON BEHALF OF THE APPLICANTS
121
2 JUSTICE T.S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA 1076 (2005); Sarang Yadwadkar
and Ors. v. The Commissioner, Pune Municipal Corporation and Anr., 2013 SCC Online NGT 4485.
122
3, Moot Proposition.
123
10, Moot Proposition.
19
MEMORANDUM ON BEHALF OF THE APPLICANTS
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honble Tribunal may be pleased to adjudge and declare:
1. That the applications filed before the Honble National Green Tribunal are
maintainable.
2. That the Gilead is deemed to be a forest for the purpose of Forest Conservation Act,
1980.
3. That the government has violated the rights of Tardas by establishing the facilities in
the District of Khyber.
4. That the government had not obtained the required environmental clearance prior to
such establishment.
5. That the Government has not adhered to the principle of Sustainable development
while carrying out such developmental activity.
And pass any other relief, that this Honble tribunal may deem fit and proper in the interest of
justice, equity and good conscience.
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